Alasdair Roberts v. University of Massachusetts - Amherst (SPR 20252417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2417 Christine M. Wilda Associate Chancellor for Compliance University of Massachusetts – Amherst 181 President’s Drive 340F Whitmore Building Amherst, MA 01003 Dear Ms. Wilda: I have received the petition of Alasdair Roberts appealing the response of the University of Massachusetts, Amherst (UMass) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 1, 2025, Mr. Roberts requested “[e]mail correspondence between UMass Amherst School of Public Policy and NASPAA . . . for the period between January 1, 2025 and March 31, 2025: All email messages between [two specified email addresses] [and] All email messages between [two specified email addresses].” On August 15, 2025, UMass provided a response. Unsatisfied with the response, Mr. Roberts petitioned this office and this appeal, SPR25/2417, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Christine M. Wilda SPR25/2417 Page 2 August 29, 2025 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. UMass’ August 15th response In its August 15, 2025 response, UMass stated, “(f)ive emails, all related to one correspondence, were found in the search for responsive records. In accordance with M.G.L. Ch. 7, § 26, the University is withholding those records which are exempt from public record under the Deliberative Process exemption M.G.L. Ch. 7, § 26(d).” Current appeal In his appeal, Mr. Roberts states, “[t]he deliberative process exemption is improperly applied. The exemption is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. UMass has not identified any deliberative process that was relevant to the subject matter of this email correspondence. In fact, UMass was not in the process of taking any decisions or adopting any policies in relation to the subject matter of this correspondence, at the time that the correspondence was conducted.” In an email dated August 19, 2025, Mr. Roberts further stated, “. . . the University of Connecticut released records that I believe are also within the scope of my request to UMass Amherst. I have attached UConn’s response.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based. G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure).

Christine M. Wilda SPR25/2417 Page 3 August 29, 2025 Based on UMass’ response, it is unclear what deliberative process the responsive records relate to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the records would taint any ongoing deliberative process. Further, UMass has not established how the records at issue are “inter-agency or intra- agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). Additionally, UMass is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. “Reasonably completed factual studies or reports on which the development of such policy positions has been or may be based” are not permitted to be withheld. See G. L. c. 4, §7 (26)(d). Consequently, UMass must clarify whether the records contain any factual information that can be segregated. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § l0(a). UMass must clarify these matters. Conclusion Accordingly, UMass is ordered to provide Mr. Roberts with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Roberts may appeal the substantive nature of UMass’ response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alasdair Roberts